Whither Constitutional Authority Statements?

On its first day of business this past January, the Republican House majority adopted a new rule requiring every bill to include a so‐​called constitutional authority statement, listing the part(s) of the Constitution that give Congress the power to do what the bill says. 


At the time, I analyzed the requirement, as did Cato’s chairman emeritus Bill Niskanen, and what effect it might have on congressional action. We noted that, while it was a good thing for people (and especially elected officials) to be paying attention to the Constitution, the practical effect may be negligible because legislators would overwhelmingly cite the General Welfare Clause, Commerce Clause, and Necessary and Proper Clause — all part of Article I, section 8. To minimize this result, Cato ran an ad in Politico and other publications explaining what these clauses could and could not justify. Here are the points we made:

• Contrary to modern readings, the General Welfare Clause does not grant Congress an independent power to tax and spend for the “general welfare.” If it did, there would be no need to enumerate any other powers. Rather, it authorizes Congress to enact the specified taxes for the specified purposes — headings more precisely defined by the 17 enumerated powers or ends that follow. And Congress’s power to tax for the “general welfare” precludes it from taxing to provide for special parties or interests.
• The Commerce Clause too does not authorize Congress to regulate anything and everything, which again would put an end to the idea of a government of enumerated and thus limited powers. Under the Articles of Confederation, states had erected tariffs and other protectionist measures that were impeding interstate commerce. To end that and ensure free interstate commerce, Congress was given the power to regulate, or “make regular,” such commerce — the main sense of “regulate” at the time. Were Congress thought to have the all but unbounded regulatory power it exercises today, the Constitution would never have been ratified.
• The Necessary and Proper grants Congress the means to execute its enumerated powers or ends and those of the other branches. It adds no new ends. And the means must be “necessary and proper.” That means they must respect the Constitution’s structure and spirit of limited government; they must respect federalism principles; and they must respect the rights retained by the people.

So, nine months later, what happened? The Republican Study Committee — essentially the GOP House Caucus’s conservative sub‐​caucus — has come up with the following analysis (analyzing 3042 bills through September 16, some of them counted more than once in the below statistics):

• 3 bills cite only the Preamble to the Constitution.
• 84 bills cite only Article 1, which creates the Legislative Branch.
• 58 bills cite only Article 1, Section 1, which grants all legislative powers to Congress.
• 470 bills cite only Article 1, Section 8, which is the list of specific powers of Congress, without citing any specific clause.
• 539 bills cite [the General Welfare Clause].
• 567 bills cite [the Commerce Clause].
• 247 bills cite [the Necessary and Proper Clause], without citing a “foregoing power” as required by [Article I, section 8,] clause 18.
• 309 bills cite two or more of the “general welfare” clause, commerce clause, or the “necessary and proper” clause.
• 87 bills cite Article 1, Section 9, Clause 7, which provides that no money shall be drawn from the Treasury, but in consequence of appropriations made by law.
• 210 bills cite Article 4, Section 3, which provides that Congress shall have the power to make rules and regulations respecting the territory or property of the United States.
• 252 bills cite an amendment to the Constitution. For example, 54 cite the 10th Amendment (powers not delegated to the federal government), 30 cite the 14th Amendment (“equal protection, etc.”), and 64 cite the 16th Amendment (income tax).

Pretty thin gruel and, as I noted above, not unexpected. Then again, if the constitutional authority statement requirement has caused even one House member to waver over what he has the power to propose — let alone to refrain from offering a bill — this minor legislative rule will have been an improvement on the status quo ante.